The Right For Law Enforcement To Steal – Civil Asset Forfeiture
The 5th Amendment to the Constitution states that you can not “be deprived of life, liberty, or property, without due process of law”. The same phrase is used again in the 14th amendment. But the reality is that those protections increasingly do nothing to protect property from illegal seizure by aggressive law enforcement agencies through the concept of civil asset forfeiture.
The legal underpinnings of civil forfeiture come all the way from English common law and reside on two bizarre principles. The first is something called “guilty property”. The basic concept here is that the property is guilty of the crime, while the owner may be completely innocent. Under this canard, the government can seize the property. It was originally used to seize pirate ships and other evaders of US customs law back in the 1800s. The second concept is the “entrustment theory” that states that the owner of property that has been used illegally is negligent and essentially loses his right of protection for that property when he allows it to be used for illegal purposes. Forfeiture is the punishment for that negligence, even though the negligence itself may not be a crime per se.
As the American police state blossomed in the late 20th century, civil forfeiture became more and more common and, as state and local budgets tightened, it became the vehicle for many police departments around the country to actually fund themselves. As you can imagine, this created an incredible incentive for law enforcement abuse.
In 2015, a Kentucky man named Jose Serrano, who is a Republican and had once run for the Kentucky House of Representatives, was driving from his home to Mexico. When he got to the US-Mexico border, he started to take pictures with his phone that he would upload to Facebook, something he had done continually on his trip. Although there is no restriction on taking photos at the border, CBP agents were not happy. They pulled him over and demanded to see his phone. He refused. At that point, CBP entered his truck and forcibly removed him from the vehicle. The agents took his phone and demanded the pass code. Serrano told them to “get a warrant”.
After that, the agents then began to also search his truck. When Serrano complained that he knew his rights and that the agents had no right to do what they were doing, he was told explicitly what happens when you cross the CBP or ICE, “I’m sick of hearing about your rights. You have no rights here.” Agents found a clip of five bullets and, gleefully, arrested Serrano.
After holding him for three hours and continually asking for and being refused the pass code to his phone, Serrano was released without being charged but his truck and ammunition clip was seized by CBP. According to the documents Serrano received, the truck was a “conveyance of illegal exportation” because Serrano had not disclosed the existence of the clip.
Returning to Kentucky, Serrano received his notice of forfeiture which stated that the truck was used to carry “arms or munitions of war” and included a number of options for Serrano to try and get his truck back. One of those options was to essentially make a monetary offer to the CBP and see if they accepted it. Said Serrano, it was “like a shakedown, give us an offer and we’ll figure out if it’s enough.” Serrano decided to challenge the seizure in court but that required a deposit of 10% of the seized assets value just to make that challenge. Serrano wrote a check for $4,000 which the CBP cashed.
Two years later, Serrano is still waiting for his hearing to recover the truck. Said Serrano’s lawyer, “Two years is too long to wait. Just like you get a hearing within 48 hours of being arrested, you should be entitled to a hearing promptly after your property is taken.” For those two years, Serrano has been paying loan and insurance payments for his truck that is actually held by the CBP. Serrano has now sued to get it back.
The experience has changed Serrano who is mystified about how this could happen in this country. He says, “It’s like there’s a war going on and they want to make war with my Bill of Rights. How do they get away with this? How could this happen?” Well, he might want to look at the political party he belongs to.
After rampant abuses by police and the revelation that federal law enforcement had seized over $5 billion in property in just 2014 alone, the Obama administration implemented restrictions on federal civil forfeiture, allowing it only in the cases of “illegal firearms, ammunition, explosives and property associated with child pornography”. Unfortunately, those restrictions did not help Serrano because of his ammunition clip, although his case is probably unique. But, earlier this year, of course, Jeff Session reversed those restrictions. So now it’s back to being another free for all that allows federal law enforcement to seize property for the flimsiest of reasons.
Read the whole disgusting story. It’s frightening.